Restorative justice: policy and practice framework

3. What is restorative justice?

3.1 In any situation where people are harmed, there are a range of personal, relational, material, emotional and moral needs which can arise for them. Opportunities are not always provided by the justice system for the person harmed to ask questions they may have about what happened and why, or to ensure the person who caused the harm fully understands the impact it has had on them. The sentence given by a court, or decision made in the Children’s Hearing system, may not reflect the true impact of harm or meet the needs of those involved.

3.2 The Guidance For The Delivery Of Restorative Justice in Scotland[ii] defines RJ as -

‘A process of independent, facilitated contact, which supports constructive dialogue between a victim and a person who has harmed (whether this is an adult, a child, a young person or a representative of a corporate or other body) arising from an offence or alleged offence.’

3.3 RJ is not a new concept. Internationally, countries across the world have been developing RJ services since the early 1990s, and in many places, these are now embedded in both policy and statute. Services range from those provided as part of the justice system and an alternative to prosecution, to voluntary approaches in the aftermath of harm or where a case is suitable for diversion from prosecution. All types of harm are generally considered, with the additional use of restorative circles in the aftermath of serious harm to support community cohesion and recovery.

3.4 In Scotland, RJ operates separately to both the criminal justice and Children’s Hearings systems and is not a replacement where a case is to progress in either of these systems. This means RJ cannot form a core element of any process or sentence resulting from either the criminal justice or Children’s Hearing system, to ensure parties engaged do so voluntarily and without incentive. This should not deter services working with an individual in making a referral for RJ, and in some cases, it might be appropriate to initiate and even conclude an RJ process while other processes are ongoing. An example of this may be where one party is not seeking a direct form of RJ which seeks contact with the other party.

3.5 RJ is voluntary and any party engaging in this should only do so when fully informed of the process and all options available to them. If RJ is assessed by a trained facilitator and partner agencies to be safe and suitable for everyone involved, the process should be designed to prioritise the needs, strengths, and desired outcomes of the person who was harmed. Any party can withdraw from an RJ process at any time, while continuing to receive support from services if they wish to do so.

3.6 RJ can take both direct and indirect forms to support a range of harm types and the needs of people who experience those. These include but are not limited to face-to-face conferences, shuttle dialogue, letter writing, healing circles, restorative cafes and RJ to address secondary harm. Where an RJ process cannot take place or is not sought by one or either party, alternative, non-direct methods of RJ and/or restorative approaches can be explored with either party if desired. Examples of this may be counselling, victim awareness raising, or other forms of education and support. If no alternative methods are acceptable or suitable, the RJ service will signpost parties to where alternative support or services are available, based on their needs and/or desired outcomes.

3.7 RJ should only be carried out by facilitators trained in restorative practices, trauma-informed practice and any other specialism relevant to the type of RJ they are to facilitate. Facilitators should also develop their experience and receive routine supervision. It is advisable to engage in a national or international professional network of RJ facilitators that can offer additional support, guidance and training.

3.8 A case of RJ may be categorised as ‘more sensitive and complex’ than others, due to the harm experienced, additional safety considerations and/or the needs of any party. Examples of such cases may be gender-based violence, and/or where parties to RJ face challenges in their mental and/or physical health. Where power dynamics or power imbalance are clear, as will be the case in domestic abuse related harm, this should also be treated as serious and complex. For children harmed, this could be in the context of a family or other important relationship where issues of trauma, trust and ongoing safety could be key considerations.

3.9 In all cases considered for RJ, an assessment of risks, strengths and the mitigation of risk should be undertaken. In more serious and complex cases, care should be taken in the completion of such an assessment by appropriately trained and experienced facilitators. Local and national expert and specialist services should provide relevant input into this process in line with data and information sharing guidance (section 25). As the risk and strengths assessment deems necessary, engagement with experts and specialist services should then continue before, during and after the process to make sure the right information is captured, and that the right support is provided. This is particularly important where either party is a child, for whom there is likely to be an ongoing multi-agency child’s plan to ensure that all needs are being met.